Peo v. Gladwell

23CA1716 Peo v Gladwell 12-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1716
Boulder County District Court No. 20CR1906
Honorable Nancy W. Salomone, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Leon Kiyoshi Gladwell,

Defendant-Appellee.

ORDER AFFIRMED

Division I
Opinion by JUDGE HARRIS
J. Jones and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 19, 2024

Michael T. Dougherty, District Attorney, Adam Kendall, Chief Trial Deputy,
Ryan Day, Senior Deputy District Attorney, Boulder, Colorado, for Plaintiff-
Appellant

Jamie Hubbard, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellee
¶1 The People appeal the trial court’s order dismissing multiple

counts of attempted extreme indifference murder against the

defendant, Leon Kiyoshi Gladwell, after a preliminary hearing. The

narrow question in this appeal is whether, to prove attempted

extreme indifference murder, the prosecution must show that the

defendant created a grave risk of death to another person. The

district court said yes. We agree with the district court and

therefore affirm.

I. Background

¶2 In September 2020, when the incident underlying the charges

occurred, Gladwell was on parole and staying in a hotel. A SWAT

team arrived at the hotel one evening to arrest Gladwell. During the

officers’ attempt to effectuate the arrest, Gladwell started a fire in

his hotel room that caused a butane can to explode. No one was

injured.

¶3 The People initially charged Gladwell with, among other

offenses, one count of attempted first degree extreme indifference

murder against certain hotel guests. Gladwell moved to dismiss

that count, arguing that his conduct had not created a grave risk of

death to any guest. The People then amended the charging

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document, substituting the single count of attempted murder

against the hotel guests with thirteen counts of attempted first

degree extreme indifference murder against each member of the

SWAT team.

¶4 In their response to Gladwell’s motion to dismiss, the People

acknowledged that to prove attempted extreme indifference murder,

they had to show that Gladwell’s conduct created a grave risk of

death to another person. But they argued that whether his conduct

created such a risk was a factual question for the jury.

¶5 The district court held a preliminary hearing on the new

charges of attempted extreme indifference murder. A police officer

and a fire investigator testified.

¶6 According to the prosecution’s evidence, on the afternoon of

the incident, local police officers, accompanied by a parole officer,

visited Gladwell at his room on the third floor of the hotel to

conduct a welfare check. During the contact with Gladwell, the

officers recovered two pocketknives from him and noted that he

appeared “scared” and potentially under the influence of drugs.

That evening, one of the officers returned with a sizable SWAT team

to arrest Gladwell for violating his parole conditions.

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¶7 While the SWAT team was positioned outside Gladwell’s room

in different areas on the third floor, Gladwell set his mattress on

fire. A butane can was on the bed; it caught fire and exploded. As

the fire investigator explained, the explosion created pressure that

caused the window in the bedroom portion of the hotel room to

break. The glass fell “in kind of a straight line down” onto the

ground rather than blowing out away from the building.

¶8 The investigator testified that because the pressure escaped

out the window, he could not say with any certainty how much

pressure the explosion created. But he acknowledged that a

window would break at “low” pressure. And he could not identify

any other real damage to the room from the explosion. In fact, the

explosion did not crack the screen of the television located next to

the bed or damage the door to the hallway.

¶9 During argument, the prosecutor conceded that because the

explosion was “always going to go away from th[e] officers” and out

the window, Gladwell’s conduct did not place any of the SWAT team

members at grave risk of death. But he now contended that

causing a grave risk of death was not an element of attempted

extreme indifference murder. Instead, his position was that the

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prosecution had to show only that Gladwell “took a substantial step

. . . toward creating a grave risk of death.”

¶ 10 The district court rejected that argument. And because it

found that the evidence, even viewed in the light most favorable to

the prosecution, did not establish probable cause that Gladwell’s

conduct created a grave risk of death to another person, the court

dismissed the attempted extreme indifference murder counts.

II. Probable Cause for Attempted Extreme Indifference Murder

¶ 11 The People argue that the district court misapplied the law.

Under their theory, they had to establish only that the defendant

tried or came close to creating a grave risk of death to another

person, not that he actually created such a risk.

A. Standard of Review

¶ 12 A preliminary hearing is not a mini trial; rather, it is a

“screening tool,” People v. Platteel, 2023 CO 18, ¶ 33, used to

determine whether there is probable cause to believe that the

defendant has committed the charged offense, see People v. Hodge,

2018 COA 155, ¶ 10. Thus, the district court must view the

evidence in the light most favorable to the prosecution and draw all

reasonable inferences in its favor. See People v. Nygren, 696 P.2d

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270, 272 (Colo. 1985). And the court may not make credibility

determinations unless the court finds that certain testimony is

incredible as a matter of law. Platteel, ¶ 32. For its part, though,

the prosecution must establish probable cause “as to each element

of the crime.” People v. Moyer, 670 P.2d 785, 791 (Colo. 1983).

¶ 13 We review the trial court’s probable cause determination for an

abuse of discretion, but we review its legal conclusions de novo.

Hodge, ¶ 11. Only if we determine that the trial court misapplied

the law will we conduct our own review of the evidence to determine

whether it would “induce a reasonably prudent and cautious person

to entertain the belief that the defendant committed the crime

charged.” Id. (quoting People v. Hall, 999 P.2d 207, 221 (Colo.

2000)).

B. Discussion

¶ 14 A person commits first degree extreme indifference murder if,

(1) “[u]nder circumstances evidencing an attitude of universal

malice manifesting extreme indifference to the value of human life

generally,” (2) he knowingly engages in conduct that “creates a

grave risk of death to” another person, and (3) “thereby causes the

death of another.” § 18-3-102(1)(d), C.R.S. 2024.

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¶ 15 The People note that a person commits criminal attempt when,

acting with the “kind of culpability” required for the completed

offense, he “engages in . . . a substantial step toward the

commission of the offense.” § 18-2-101(1), C.R.S. 2024. Therefore,

their argument goes, to prove attempted extreme indifference

murder, they had to establish only that Gladwell took a substantial

step toward completing the commission of the crime of extreme

indifference murder.

¶ 16 But our state’s case law is clear that the “substantial step

required for a conviction of attempted extreme indifference murder

is ‘conduct which poses a real and proximate risk of death to the

victim.’” People v. Ramos, 708 P.2d 1347, 1350 (Colo. 1985)

(quoting People v. Castro, 657 P.2d 932, 941 (Colo. 1983)). This

holding has constitutional underpinnings. In rejecting the

defendant’s equal protection claim, the Castro court differentiated

attempted first degree assault from attempted extreme indifference

murder on the basis that the latter crime, unlike the former,

requires the prosecution to prove that the defendant’s conduct

created a grave risk of death to another. Castro, 657 P.2d at 941,

overruled on other grounds by West v. People, 2015 CO 5. A “grave

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risk” of death “refers to conduct that is practically certain to cause

the death of another.” Id. at 940.

¶ 17 We reject the People’s argument that under Castro (and its

progeny), the substantial step can merely be conduct that is

“inherently dangerous,” not one that actually creates a grave risk of

death to another person. The supreme court did not say that, and,

contrary to the People’s argument, its ruling specifically focused on

the risk of death to the victim, not the inherent dangerousness of

the conduct: by firing shotgun blasts “in the general direction of the

victim,” the court reasoned, the defendant “create[d] a grave risk of

death to another.” Id. at 941.

¶ 18 Nor are we persuaded that the law concerning extreme

indifference murder has “evolved,” such that Castro’s holding is

obsolete. In the years since Castro, appellate court decisions have

uniformly reaffirmed that a conviction for attempted extreme

indifference murder requires proof that the defendant created a

grave risk of death to another person. See Ramos, 708 P.2d at

1350; Candelaria v. People, 148 P.3d 178, 183 (Colo. 2006)

(evidence was sufficient to support attempted extreme indifference

murder conviction where the jury could have found that the

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defendant was aware that his conduct “was practically certain to

cause death”); Montoya v. People, 2017 CO 40, ¶ 17 (substantial

step necessary to complete crime of extreme indifference murder is

the defendant’s knowing engagement in conduct practically certain

to cause the death of another); see also People v. Ellis, 30 P.3d 774,

779 (Colo. App. 2001) (affirming convictions for attempted extreme

indifference murder because the evidence showed that the

defendant “engaged in conduct creating a grave risk of death to

others”); People v. Rubio, 222 P.3d 355, 359 (Colo. App. 2009)

(“Attempted extreme indifference murder . . . covers knowing

conduct that created a grave risk of, but did not result in, death.”);

People v. Draper, 2021 COA 120, ¶ 102 (affirming the defendant’s

conviction for attempted extreme indifference murder because the

defendant’s conduct of shooting at occupied vehicles “posed a real

and proximate risk of death to the victims” regardless of whether

they sustained injuries), overruled on other grounds by Garcia v.

People, 2023 CO 30; cf. People v. Terry, 2019 COA 9, ¶ 42

(attempted extreme indifference murder is a per se grave and

serious offense because it involves conduct that creates a grave risk

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of death), overruled on other grounds by People v. Segura, 2024 CO

70.

¶ 19 Because attempted extreme indifference murder requires proof

of conduct that creates a grave risk of death, the People’s reliance

on the attempt statute’s impossibility provision misses the mark.

True, “[f]actual or legal impossibility of committing the offense is not

a defense if the offense could have been committed had the

attendant circumstances been as the actor believed them to be.”

§ 18-2-101(1). But that just means that if the defendant has taken

a substantial step toward committing the crime, it is no defense to

say that he could not have completed the commission of the crime

based on some factual or legal impossibility — he is still guilty of

criminal attempt. Gladwell did not take a substantial step toward

committing the completed crime, though, so impossibility principles

are inapplicable.

¶ 20 None of the cases on which the People rely advance their

position. People v. Lehnert, 163 P.3d 1111 (Colo. 2007), for

example, did not involve impossibility or attempted extreme

indifference murder. The question in that case was whether the

defendant’s conduct amounted to a substantial step toward the

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commission of the crime of attempted first degree murder (after

deliberation). Id. at 1115. The court concluded that by repeatedly

expressing her intent to kill two law enforcement officers with pipe

bombs, acquiring all the materials and instructions necessary to

build the bombs, partially constructing a bomb, buying gunpowder,

gathering personal information about one of the intended victims,

and “reconnoiter[ing]” the victim’s home, the defendant had indeed

taken a substantial step toward committing the crime, even if she

never produced an operational bomb. Id. at 1115-16. The decision

does not affect our analysis. Lehnert simply stands for the

proposition that a person commits an attempt crime when he takes

a substantial step toward committing the completed crime. The

supreme court, though, has defined what constitutes a substantial

step for purposes of attempted extreme indifference murder.

¶ 21 The same goes for cases involving attempted sexual assault on

a child where the “victim” is a police officer. As the division

explained in People v. Buerge, 240 P.3d 363, 367-68 (Colo. App.

2009), a defendant can take a substantial step toward committing

the crime of sexual assault regardless of the true identity of the

victim. But again, a person cannot take a substantial step toward

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committing the crime of extreme indifference murder without

engaging in conduct that creates a grave risk of death to another

person.

¶ 22 The People’s list of hypotheticals is equally unhelpful. If a

person shot at a group of people, but “an [unknown] obstacle . . .

prevented th[e] bullets from striking [the] victims,” he might not be

guilty of attempted extreme indifference murder, but he would likely

be guilty of attempted first degree murder (after deliberation). And

if person shot into a car he knew was occupied but he did not

injure someone, he could still be guilty of attempted extreme

indifference murder, see Draper, ¶¶ 101-02, unless, for some

reason, the act of shooting into the occupied car did not create a

grave risk of death to any person. Under those circumstances,

though, he would likely be guilty of attempted first degree murder

(after deliberation). We do not consider these results absurd. And

even if we did, we are bound by the supreme court’s decisions. See

People v. Smith, 183 P.3d 726, 729 (Colo. App. 2008).

¶ 23 Although the People contend that the evidence established

probable cause, they do not argue that it showed that Gladwell

created a grave risk of death to another person. Accordingly, we

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conclude that the district court did not err by dismissing the

thirteen counts of attempted extreme indifference murder.

III. Disposition

¶ 24 The order is affirmed.

JUDGE J. JONES and JUDGE GOMEZ concur.

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